UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-1743

GENEESE MCKELDIN,
Plaintiff - Appellant,
versus
RELIANCE STANDARD LIFE INSURANCE COMPANY,
Defendant - Appellee.

Appeal from the United States District Court for the District of
Maryland, at Baltimore.
J. Frederick Motz, District Judge.
(1:05-cv-02563-JFM)

Submitted:

September 17, 2007

Decided:

October 17, 2007

Before SHEDD, Circuit Judge, HAMILTON, Senior Circuit Judge, and

Samuel G. WILSON, United States District Judge for the Western
District of Virginia, sitting by designation.

Affirmed by unpublished per curiam opinion.

Eric Wexler, MCCHESNEY & DALE, P.C., Bowie, Maryland, for

Appellant.
Joshua Bachrach, RAWLE & HENDERSON, L.L.P.,
Philadelphia, Pennsylvania, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:
Plaintiff Geneese McKeldin (McKeldin), a registered nurse, has
brought this civil action against Reliance Standard Life Insurance
Company

(Reliance),

claiming

wrongful

denial

of

long-term

disability benefits in violation of the Employee Retirement Income

Security Act of 1974 (ERISA), 29 U.S.C. 1001 et seq.
district court granted Reliances motion for summary judgment.

The
We

affirm on the reasoning of the district court.

I.
Reliance is the insurer and claims review fiduciary of the
group long-term disability plan (the Plan) under which McKeldin is
seeking benefits as a plan participant. The parties agree the Plan
is governed by ERISA.
On January 4, 2001, McKeldin was hospitalized with complaints
of left calf pain and recurrent deep vein thrombosis (DVT), a
problem that McKeldin had experienced for approximately twenty
years. The hospital admission report also noted that McKeldin has
a

history

of

fibromyalgia

and

fatigue

and

has

been

on

antidepressants and anticipated work leave because of this. (J.A.

776).
At the time of McKeldins hospitalization, she worked for Marc
L. Chaiken, M.D., P.A., as a nurse manager, which position required
her to be able to stand for the entire eight-hour work day.

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Standing for this long caused McKeldin to suffer pain and swelling
in her left calf.

Following her hospitalization, McKeldin did not

work for the next three months.

In addition to her physical

ailments, McKeldin suffered from depression.

On April 3, 2001, McKeldin applied for long-term disability
benefits under the Plans total disability provision, claiming that
she was incapable of working due to DVT, as well as fibromyalgia
and chronic fatigue.
provides

long-term

Relevant to the present appeal, the Plan

disability

benefits

when

claimant

demonstrate total disability, defined as follows:

Totally Disabled and Total Disability mean, that as
a result of an Injury or Sickness:
(1) during the Elimination Period, an Insured
cannot perform each and every material duty of
his/her regular occupation; and
(2) for the first 36 months for which a Monthly
Benefit is payable, an Insured cannot perform the
material duties of his/her regular occupation;
(a) Partially Disabled and Partial
Disability mean that as a result of an
Injury or Sickness an Insured is capable
of performing the material duties of
his/her regular occupation on a part-time
basis or some of the material duties on a
full-time basis.
An Insured who is
Partially Disabled will be considered
Totally Disabled, except during the
Elimination Period; and
(3) after a Monthly Benefit has been paid for 36
months, an Insured cannot perform each and every
material duty of any occupation. Any occupation is
one that the Insureds education, training or
experience will reasonably allow.

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can

(J.A. 475).
Based

upon

the

information

submitted,

Reliance

approved

McKeldins application for long-term disability benefits and began

paying such benefits on April 5, 2001.

Of relevance on appeal,

Reliance paid McKeldin long-term disability benefits for thirty-six

months.

The record indicates that for a large portion of this

time, McKeldin worked two part-time jobs.

One job required her to

administer flu shots to hospital employees. The other job required

her to perform victim sexual-assault examinations as a forensic
nurse.

For both jobs, McKeldin stated that she could only work

three to four hours at a time and that each shift required her to
recuperate for between eighteen and thirty-six hours.
Reliance notified McKeldin that she did not qualify for longterm disability benefits under the Plan beyond thirty-six months
because she could perform some material duties of occupations that
her education, training or experience would reasonably allow.
Reliance also asserted that benefits were properly discontinued
under a twenty-four month limitation on the receipt of long-term
disability benefits for total disability caused by or contributed
to by mental disorders.
After

exhausting

her

administrative

remedies,

McKeldin

initiated this ERISA action, pursuant to 29 U.S.C. 1132(a), to

challenge Reliances denial of her claim for long-term disability
benefits beyond thirty-six months.

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After Reliance moved for

summary judgment, McKeldin moved to take discovery in addition to

the administrative record and moved for summary judgment herself.
The district court subsequently granted Reliances motion for
summary judgment, denied McKeldins motion for summary judgment,
and denied her motion to take additional discovery on the ground
that case law required that judicial review of Reliances claim
denial is limited to the administrative record.
In its Memorandum Opinion, the district court noted that
Reliance had asserted two independent bases for its decision to
deny

McKeldin

months:
performing

long-term

disability

benefits

beyond

thirty-six

(1) that despite her disability she is capable of

some

of

the

material

duties

of

other

suitable

occupations, and (2) that mental disorders have contributed to

her disability.

(J.A. 115).

Because the district court ruled in

favor of Reliance with respect to the first basis, it expressly did

not address the second basis for its denial.
The crux of the district courts analysis in ruling in favor
of Reliance is that when the phrase each and every, as found in
subparagraph three of the Plans definition of Totally Disabled,
is read in conjunction with the other definitions of Totally
Disabled

in

the

two

preceding

subparagraphs,

it

becomes

unmistakably clear that, (J.A. 116), the phrase each and every,
as found in subparagraph three, means that an insured would be
considered totally disabled only if she was unable to perform all

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material duties of any occupation that the insureds education,

training or experience will reasonably allow.

In reaching this

holding, the district court relied heavily upon our decision in

Gallagher v. Reliance Standard Life Ins. Co., 305 F.3d 264 (4th
Cir.

2002).

In

Gallagher,

we

read

language

materially

indistinguishable from subparagraph threes definition of totally

disabled as unambiguously providing that an employee is totally
disabled if he is unable to perform all duties of his regular
occupation.

Id. at 270.

The district court went on to hold that Reliance did not abuse
its discretion in applying this plain language reading of the Plan
to deny McKeldin long-term disability benefits beyond thirty-six
months.

Specifically, the district court held that even putting

aside the physicians report by Dr. William Hauptman favorable to

Reliance, which report McKeldin challenged as the biased report of
a hired gun, other evidence in the administrative record including
two other physician reports, the report of a vocational expert, and
the denial of McKeldins claim for disability benefits from the
Social Security Administration, provided a credible and proper
basis for Reliances conclusion that McKeldin was capable of
performing at least one of the material duties of a suitable
occupation.

Notably, the district court expressly observed that

McKeldin never even attempted to refute the respective conclusions

of

Drs.

Robert

Frieman

and

Scott

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Brown,

the

Social

Security

Administration, and the vocational expert that she was capable of

performing at least one of the material duties of a suitable
occupation.
McKeldin subsequently moved to amend the judgment on the basis
that

the

district

language.

court

allegedly

misread

the

relevant

Plan

The district court denied the motion and this timely

appeal followed.

II.
We review the district courts grant of summary judgment in
favor of Reliance de novo, applying the same standards as the
district court employed.

Evans v. Metropolitan Life Ins. Co., 358

F.3d 307, 310 (4th Cir. 2004).

Because the Plan gives Reliance

discretion to determine McKeldins eligibility for Plan benefits,

and since Reliance is also the Plans insurer, we review Reliances
decision to deny McKeldin long-term disability benefits beyond
thirty-six months under the modified abuse of discretion standard.
Id. at 311.

Under the modified abuse of discretion standard, the

denial of benefits will be upheld if the decision is reasonable,

Carolina Care Plan Inc. v. McKenzie, 467 F.3d 383, 387 (4th Cir.
2006), and Reliances conflict of interest must be weighed as a
factor in determining whether an abuse of discretion occurred.
Evans, 358 F.3d 311.

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Moreover, when, as here, an ERISA plan vests discretion in the

decision-maker, who also insures the plan, reasonable exercise of
that discretion requires that the decision-maker/insurer construe
plan ambiguities against the party who drafted the plan. Carolina
Care Plan, Inc. v. McKenzie, 467 F.3d 383, 389 (4th Cir. 2006).
The

automatic

construction

of

ambiguous

language

against

drafter is known as the doctrine of contra proferentem.

Id.

the
In

Carolina Care Plan, we carefully explained that application of the

doctrine of contra proferentem in the ERISA plan context does not
deprive a decision-maker/insurer of its discretion under an ERISA
plan.

Id.

Rather, we explained, when a decision-maker/insurer

applies un ambiguous plan terms to the facts of a particular

claim,

courts

will

defer

to

every

judgment

the

[decision-

maker/insurer] makes that is supported by substantial evidence and

a reasoned decisionmaking process.

Id.

III.
The Plans definition of Totally Disabled is at the heart of
the dispute in this case.

McKeldin argues that the language

stating an Insured cannot perform each and every material duty of

any occupation in subparagraph three of the Plans definition of
Totally Disabled is ambiguous, and therefore, should be construed
in her favor. Reliance defends the district courts plain-language

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reading of the language at issue in subparagraph three by relying

on our decision in Gallagher, 305 F.3d at 270.
We hold the district court correctly determined that the
language stating an Insured cannot perform each and every material
duty

of

any

occupation

in

subparagraph

three

of

the

Plans

definition of Totally Disabled unambiguously means that a Plan

participant does not qualify for long-term disability benefits
beyond thirty-six months unless such participant is unable to
perform all of the material duties of any occupation that such
participants education, training or experience will reasonably
allow.

In so holding, we fully agree with the district courts

plain-language analysis of the Plan language at issue.

In the

words of the district court:

While partial disability is sufficient to establish
eligibility for receipt of total disability benefits
during the 36-month period, it does not suffice to
qualify an insured as totally disabled as defined in
subparagraph one for the Elimination Period.
Thus, a
fortiori, the phrase each and every, at least as used
in subparagraph one, must mean that an insured who can
perform one or more of the material duties of her job,
but not all, is not totally disabled.
Because it is logical to assume that the words were
intended to convey the same meaning both times they were
used, the court adopts the same interpretation of each
and every for subparagraph three.
(J.A. 117-18) (internal quotation marks, citations, and alteration
marks

omitted).

subparagraph

three

In
is

short,
read

when
in

the

context

language
with

the

at

issue

in

language

of

subparagraphs one and two, the language at issue in subparagraph

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three is only reasonably susceptible of the district courts

interpretation.
Reliance is also correct that our decision in Gallagher
supports

the

district

courts

plain-language

analysis.

In

Gallagher, we read language identical to subparagraph threes

definition of totally disabled as unambiguously providing that an
employee is totally disabled if he is unable to perform all the
duties of his regular occupation.

Id. at 270.

This reading is

wholly consistent with reading the each and every material duty
language of subparagraph three as unambiguously providing that in
order to qualify for long-term disability benefits beyond the
thirty-six month period, the plan participant applying for such
benefits must be unable to perform all of the material duties of
any occupation that such plan participants education, training or
experience will reasonably allow.
We also agree with the district courts holding that even
putting aside Dr. Hauptmans report favorable to Reliance, other
evidence in the administrative record including two other physician
reports, the report of a vocational expert, and the denial of
McKeldins claim for disability benefits from the Social Security
Administration, provided a credible and proper basis for Reliances
conclusion that McKeldin was capable of performing at least one of
the material duties of a suitable occupation.

For example, the

record contains the assessment of a vocational expert who concluded

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that McKeldin could perform some of the material duties of various

occupations that matched her education and training, for example,
Holter Scanning Technician and Optometric Assistant, and that she
could perform all of the material duties of a Cardiac Monitor
Technician.
which

Notably, McKeldin points us to nothing in the record

contradicts

despite

the

fact

these
that

conclusions
she

bears

of

the

the
burden

vocational
of

expert

proof.

See

Gallagher, 305 F.3d at 270 (ERISA plan participant bears burden of

proof that he qualifies for long-term disability benefits).
In

sum,

because

substantial

evidence

supports

Reliances

denial of McKeldins claim for long-term disability benefits based

upon its straightforward application of the unambiguous terms of
the Plan, we affirm on the reasoning of the district court.1

Given our disposition, we do not reach Reliances alternative

argument that, even if the language at issue in subparagraph three
is ambiguous, it still wins because the Plan expressly gave it the
discretionary authority to resolve ambiguities in the Plan.
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We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the
court and oral argument would not aid the decisional process.2

AFFIRMED

Finally, we note that McKeldin argues the district court

committed reversible error by denying her request for discovery of
evidence of Reliances conduct in handling her claim that is not in
the claim file.
She speculates that such evidence has the
potential to support her allegation that Reliances denial of her
claim for long-term disability benefits beyond thirty-six months
was simply the result of its conflict of interest. Her argument is
mooted by the fact that the district courts analysis already took
into account Reliances conflict of interest as the Plans
decision-maker/insurer.
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